SPS Measures Existing under in SADC, EAC, and COMESA

The three RECs that form part of the TFTA had already set up their own individual SPS measures before the conclusion of the TFTA and launch them in 2015. SADC member states negotiated and adopted the SADC Trade Protocol (SACD PT) from which Annex VIII concerning Sanitary and Phytosanitary Measures was adopted. EAC member states also negotiated and adopted the EAC Protocol on Sanitary and Phytosanitary measures pursuant to Article 108 of the EAC Treaty,²⁵ and Article 38 of the Protocol on the Establishment of the East African Customs Union.²⁶ Both these provisions require the harmonisation and co-operation of the EAC member states regarding the application of SPS measures in the establishment of the EAC as an economic community and as a customs union. The COMESA member states undertook through the COMESA SPS Regulations, which were adopted as part of the legal framework of the COMESA Treaty, to implement and harmonise their SPS measures. This is the general backdrop upon which the TFTA negotiations were being undertaken about SPS measures. The biggest concern would therefore be the direct duplication, overlap, and contradiction of obligations horizontally among the RECs and vertically with the WTO SPS Agreement. SADC member states were the first to set up their SPS regime in 2000, followed by COMESA member states in 2009 and lastly EAC member states in 2016.The following section analyses more specifically the three different and separate SPS regimes and compares them to the WTO SPS Agreement.

2.1.1 An Assessment of the SADC SPS Annex VIII

The SADC Trade Protocol (SADC-PT) was passed on 24^th August 1996.²⁷ It only came into effect on 1^st September 2000 after protracted negotiations.²⁸ The SADC-PT, according to the SADC Treaty,²⁹ is ‘an instrument of implementation’ carrying the same legal force as the SADC treaty. The SADC-PT has the objectives of further liberalisation of intra-regional trade in goods and services; ensuring efficient production within SADC;

contributing towards improvement of the climate for domestic, cross-border and foreign investment; enhancing the economic development, diversification and industrialisation of the region; and establishing a Free Trade Area (FTA) in the SADC region.³⁰ Article 16 of the Protocol provides the main obligations on SPS measures. SADC member states agree to

23 East African Community (COMESA-EAC-SADC) Tripartite (2017) link 6.

24 Kalenga (2011) link 9.

25 The Treaty for the Establishment of the East African Community (As amended on 14th December 2006 and 20th August 2007).

26 The Protocol on the Establishment of the East African Customs Union (2005) link 14.

27 SADC (2017) link 15.

28 Kalenga (2004) link 13.

29 Treaty of the Southern African Development Community (SADC), 32 ILM 116, Article 1.

30 Southern African Development Community, (1996), SADC Protocol on Trade¸ Article 2.

base their SPS measures on international standards, guidelines, and recommendations in order to harmonise sanitary and phytosanitary measures for agriculture and livestock production.³¹ Additionally, the provision also obliges SADC member states, upon request, to enter into consultation with the aim of achieving agreements on recognition of the equivalence of specific sanitary and phytosanitary measures, in accordance with the WTO SPS Agreement.³² The SADC SPS Annex was signed on 7^th December 2012 and came into force upon approval by the SADC Committee of Ministers of Trade on 17^th July 2014, in Gaborone, Botswana.³³

It is important to note that all the member states of SADC are also members of the WTO. This means that the multilateral obligations stemming from the WTO SPS Agreement apply to them even without the more specific obligations in the SADC-PT and Annex VIII.

The objectives of Annex VIII are to facilitate the protection of human, animal or plant life or health in the territory of members; to enhance the member states’ implementation of the WTO SPS Agreement; to enhance technical capacity to implement and monitor SPS measures including promoting greater use of international standards and other matters concerning SPS; to provide a regional forum for addressing sanitary and phytosanitary matters and to provide a regional forum for resolving trade related sanitary and phytosanitary issues.³⁴ As emphasised in the second objective of the SADC-PT, the majority of provisions in the Protocol correspond directly with those in the WTO SPS Agreement. Additionally, it is important to note that Annex VIII has two appendices, the ‘Transparency of Sanitary and Phytosanitary Regulations’ (Appendix A) and ‘Control Inspection and Approval Procedures’ (Appendix B). These two appendices form an integral part of the SADC Annex and the SADC-PT on trade.³⁵

The core substantive provisions of the SADC-SPS Annex are largely identical in wording and in purpose to the WTO SPS Agreement.³⁶ There are, however, certain specific differences and variances that might have serious legal implications. On the principle of harmonisation, the SADC member states undertook ‘where appropriate’ to work towards harmonisation of their respective mandatory requirements taking into account relevant international standards, guidelines or recommendations.³⁷ The wording here is at variance with that of the WTO SPS Agreement which requires that members ‘base their sanitary or phytosanitary measures on international standards, guidelines, and recommendations.’³⁸ The use of the word ‘taking into account relevant’ international standards in the SADC-SPS is less stringent than ‘based on’ international standard in the WTO SPS Agreement. This is based on the WTO Appellate Body’s view on the establishment of a presumption of consistency when measures are based on international standards.³⁹ This means that SADC member states need not base their SPS measures on international standards if they have taken into account relevant international standards. This is accurate for at least the SADC SPS standards even though all SADC members are WTO members and are therefore bound

31 SADC Protocol on Trade, Article 16(1).

32 SADC Protocol on Trade, 16(2).

33 Joubert (2014) 26.

34 SADC-PT, Article 2.

35 SADC-PT, Article 4.

36 Joubert (2014) 27.

37 SADC-SPS Annex, Article 6(1).

38 WTO SPS Agreement, Article 3(1).

39 Appellate Body Report on EC-Hormones, para 171.

by the higher WTO SPS Agreement standard. Additionally, SADC member states are required within the limits of their resources to make every effort to participate in relevant international organisations and, whenever possible, if mandated, to present a common SADC position in these organisations to promote within these organisations the development of periodic review of standards, guidelines, and recommendations with respect to sanitary and phytosanitary measures.⁴⁰

The next substantive requirement is equivalence. SADC members undertake to the extent practicable, without compromising their appropriate levels of SPS protection and in accordance with guidelines developed by the WTO SPS Committee and the relevant international standard setting bodies, to enter into consultations aimed at achieving bilateral or regional agreements on the recognition of equivalence of their SPS measures.⁴¹ This provision is more extensively worded than that of the WTO SPS Agreement.⁴² Both instruments, however, use the mandatory phrase; ‘shall accept’ the SPS measures of other member states as equivalent. This accordingly means that members have no discretion to refuse requests of the equivalence recognition once the inspection, test, and relevant procedures have been met.⁴³An objective assessment by the importing member state and the exporting member state provided the importing member state provides scientific evidence or other information, in accordance with risk assessment methodologies agreed upon by both members.⁴⁴ If an importing member state on a scientific basis determines that the exporting member state’s SPS measures does not achieve the importing member’s level of protection, then it may refuse to accept the SPS measures as equivalent.⁴⁵ Written reasons should be provided in case of such refusal.⁴⁶ It is important to note that the SADC-SPS obligation on equivalence should be read similarly, based on the language of Annex VIII, on the requirement of the WTO SPS Agreement that does not require ‘duplication or sameness’ of the measures, but ‘the alternative’ of the measure if objectively and scientifically proven should be acceptable.⁴⁷

Additionally, Annex VIII also has the core substantive provisions of risk assessment and determination of the appropriate level of SPS protection.⁴⁸ In making this assessment of risk, members are required to take into account various factors including relevant scientific evidence.⁴⁹ This provision is similarly present in the WTO SPS Agreement which requires members to base their SPS measures on relevant scientific evidence as described in Article 2 and 5 of the WTO SPS Agreement. This means that the SADC members are committed to taking a science-based approach when it comes to the imposition of SPS measures. This is true, as seen above, even in the equivalence provisions. SADC members are required to base their SPS measures, on an assessment and as appropriate to the circumstance of the risk to human, animal and plant life or health.⁵⁰ These risk assessment, like that in the WTO

40 SADC-SPS Annex, Article 6(2).

41 SADC-SPS Annex, Article 7(1).

42 Compare SADC-SPS Annex, Article 7(2) to WTO SPS Agreement, Article 4.

43 Landwehr (2007) 433.

44 SADC-SPS Annex, Article 7(2) (a).

45 SADC-SPS Annex, Article 7(2) (b).

46 SADC-SPS Annex, Article 7(2) (c).

47 SPS Committee (2004) 1.

48 SADC-SPS Annex, Article 8.

49 SADC SPS Annex, Article 8(2).

50 SADC SPS Annex, Article 8(2).

SPS Agreement, should ‘be based on scientific principles.’⁵¹ Furthermore, SADC members have undertaken to follow international standards in developing their SPS measures.⁵² Importantly, Annex VIII embodies the precautionary principle. SADC member states can depart from the strictures of risk assessment, when such a member state determines that the available relevant scientific evidence or other information is insufficient to complete the assessment.⁵³ Such a member state may adopt a provisional SPS measure on the basis of available relevant information including from international standardising organizations and from SPS measures of other member states.⁵⁴

Another key feature in the regulation of SPS measures is the precautionary principle.

The principle made its first appearance in 1992 in environmental law under Principle 15 of the Rio Declaration.⁵⁵ In international trade, the principle was introduced in Article 5.7 of the SPS Agreement as a component of risk management.⁵⁶ The precautionary principle is important where parties are unable to make an objective risk assessment, thus striking a balance between international trade liberalisation and public health protection.⁵⁷ It has the effect of allowing members to maintain provisional SPS measures where the relevant scientific evidence is insufficient.⁵⁸ Thus, a positive action, such as a ban, may be adopted before the existence of a risk is scientifically established.⁵⁹ The provisional measure must be adopted on the basis of relevant information.⁶⁰ The provision on precautionary principle under the SADC SPS Annex corresponds almost directly to the WTO SPS Agreement provision on the same. The purpose of the provision is the same while the wording is slightly different. The SADC SPS allows parties to maintain a provisional measure, on the basis of available relevant information, in cases where there is insufficient scientific information to conduct a risk assessment.⁶¹ There is a further requirement that members should, while applying the provisional measure, seek to obtain the additional information necessary to conduct an objective risk assessment.⁶² They are also required to review the provisional measure within a reasonable period of time.⁶³ The similarity of this provision with the WTO SPS provision on the precautionary principle prevents any contradiction on the responsibilities of Member States according to the SADC SPS Annex and the WTO SPS Agreement. It instead has the requirement of streamlining regulation of SPS measures within the SADC SPS regime and the WTO SPS regime.

Furthermore, special and differential treatment is a principle that seeks to take into account the unique needs of developing and least developing countries, granting them favourable treatment in trade so as to increase their capacity to participate in in the global trading system.⁶⁴ It aims to ensure that developing and least developing countries

51 SADC SPS Annex, Article 8(2); compare WTO SPS Agreement, Article 5(1) & (2).

52 SADC SPS Annex, Article 8(1).

53 SADC SPS Annex, Article 8(1), Article 8(3); compare WTO SPS Agreement, Article 5(7).

54 SADC SPS Annex, Article 8(3).

55 Laowonsiri (2010) 569.

56 Laowonsiri (2010) 569.

57 Laowonsiri (2010) 567.

58 SADC SPS Annex, Article 8 (3); WTO SPS Agreement, Article 5 (7).

59 SADC SPS Annex, Article 8 (3); WTO SPS Agreement, Article 5 (7).

60 SADC SPS Annex, Article 8 (3).

61 SADC SPS Annex, Article 8 (3).

62 SADC SPS Annex, Article 8 (3).

63 SADC SPS Annex, Article 8 (3).

64 Brennan (2011) 143.

participate on a proportionately beneficial basis by going beyond formal guarantees of equality.⁶⁵ Special and differential treatment is not limited to tariffs but also extends to non-tariff issues such as extended time-frames of implementation, exemptions and flexibility from certain rules and technical assistance.⁶⁶ The WTO SPS Agreement provides for special and differential treatment in favour of developing countries and least-developed countries (LDCs). It includes, under certain circumstances, longer frames for compliance, time-limited exceptions from the obligations of the Agreement and facilitation of developing country participation in the work of the relevant international organisations.⁶⁷ The participation of developing and least develop countries in the work of relevant international organisations is to ensure that there is equality and broader representation of their needs and interests within these international organisations.⁶⁸ The WTO SPS Agreement also provides for technical assistance to Members, especially developing country Members.⁶⁹ The SADC SPS Annex, unlike the WTO SPS Agreement, has no provisions on special and differential treatment. This could be due to the members of SADC being either developing or least developed countries themselves or special or differential obligations were never negotiated by the least developed of SADC member states.

The SADC SPS Annex, however, makes provisions for technical assistance to enhance the capacity of Member States to implement and monitor sanitary and phytosanitary measures.⁷⁰ Resource mobilisation for technical assistance under the SADC SPS Annex is a mandate to be facilitated by the SADC Secretariat working together with the SADC Sanitary and Phytosanitary Coordinating Committee. The WTO SPS Agreement, unlike the SADC SPS Annex, mandates the Members themselves to facilitate resource mobilisation for technical assistance.⁷¹

In an effort to ensure transparency of sanitary and phytosanitary measures, the SADC SPS Annex requires each Member State to ensure that a WTO SPS Enquiry Point exists.⁷² The enquiry point has the mandate of providing answers to all questions from interested Member States on matters SPS.⁷³ The WTO SPS Agreement similarly requires the establishment of enquiry points to achieve the same mandate.⁷⁴ The recognition of the WTO SPS Enquiry Point by the SADC SPS Annex is important as it defeats the possibility of dual institutions conducting the same functions. Angola, Botswana, Lesotho, Madagascar, Malawi, Mauritius, Mozambique, Namibia, Seychelles, South Africa, Swaziland, Tanzania, Zambia, and Zimbabwe have established national notification and enquiry points.⁷⁵ The SADC SPS Annex does not mandate Member States to establish new enquiry points.

Instead, it recognises the WTO SPS Enquiry Points and seeks to harmonise the functions between the different agreements. Closely related to the management of SPS measures is

65 Brennan (2011) 143.

66 Committee on Trade and Development (2001).

67 SADC SPS Annex, Article 10.

68 Seibert-Fohr (2007) 510.

69 SADC SPS Annex, Article 9.

70 SADC SPS Annex, Article 12.

71 WTO SPS Agreement, Article 9.

72 SADC SPS Annex Appendix A, Article 3.

73 SADC SPS Annex Appendix A, Article 3.

74 Article 3, Annex B, WTO SPS Agreement.

75 Gebrehwet, Ngqangweni and Kirsten (2007) 1.

the SPS Committee. The WTO SPS Agreement establishes the Committee on Sanitary and Phytosanitary Measures (SPS Committee) to act as the main administration unit of the Agreement to oversee its implementation.⁷⁶ The SPS Committee is a regular forum at the WTO where member States and governments with observer status can conduct consultations about SPS measures that affect trade to oversee the implementation of the WTO SPS Agreement. Article 14 of the SADC SPS Annex establishes the SADC Sanitary and Phytosanitary Coordinating Committee. It also requires each member state to establish a National Committee on Sanitary and Phytosanitary measures.⁷⁷ The SADC SPS Coordinating Committee then compromises of two representatives of each National Committee on Sanitary and Phytosanitary Measures.⁷⁸ The SADC SPS Coordinating Committee acts as a consultative forum for promoting the objectives of the SADC SPS Annex and strengthening cooperation between regulatory agencies.⁷⁹ It is also mandated to promote transparency in SPS measures.⁸⁰

2.1.2 An Assessment of the East African Community Sanitary &

Phytosanitary Measures Protocol

The EAC has a current membership of 6 partner states, with the latest entrant being South Sudan. Article 5(2) of the Treaty establishing the East African Community states that the first stage of EAC integration will be the formation of a customs union.⁸¹ The EAC Customs Union Protocol came into force in January 2005. The Protocol has four major elements within its primary objective of facilitating intra and inter African trade, the fourth of which is the elimination of non-tariff barriers (NTBs).⁸² Article 38 of the Customs Union Protocol requires partner states to take cognizance of cooperation in sanitary and phytosanitary measures in order to facilitate trade in the community and among other trading partners.⁸³ The legal basis for the EAC SPS Protocol was also derived from the EAC Common Market Protocol in Article 5(2) (a),⁸⁴ which requires that the partner states are to harmonise and mutually recognise SPS standards and technical barriers to trade. The East African Communities Sanitary and Phytosanitary Measures Protocol that entered into force on 12^th July 2013, provides the legal basis for reforms in the EAC that are to guarantee food safety, plant protection and animal health.⁸⁵ The Protocol came about pursuant to Article 151⁸⁶ of the EAC treaty that states that partner states may conclude such protocols as may be necessary for the area of cooperation and Articles 105 to 110 of the EAC Treaty which provides for partner states to cooperate in agriculture and food safety.

76 Gebrehwet, Ngqangweni and Kirsten (2007) 1. WTO Sanitary and Phytosanitary Agreement (1995), Article 12. The SPS Committee has been involved in the reviewing of the SPS Agreement since its inception.

77 SADC SPS Annex, Article 14 (2).

78 SADC SPS Annex, Article 14 (1).

79 SADC SPS Annex, Article 14 (5).

80 SADC SPS Annex, Article 14 (4).

81 Treaty establishing the East African Community, Amended (2007), Article 5(2).

82 East African Community Customs Union Protocol, 2005.

83 East African Customs Union Protocol, 2005, Article 38.

84 East African Community Common Market Protocol, 2010, Article 5(2) (a).

85 Kenya’s Ratification (2016) link 10.

86 Treaty establishing the East African Community, Amended (2007), Article 151.

A reading of the objectives of the EAC Sanitary and Phytosanitary Protocol (‘The EAC SPS Protocol’) leads to a prima facie conclusion that it largely mirrors the WTO SPS Agreement, in that most of its provisions are borrowed lock, stock, and barrel from the WTO SPS agreement.⁸⁷ The preamble of the EAC SPS Protocol takes note of the principle of harmonisation, for the improvement of human, animal and plant health life; the importance of the security and safety and free trade in agricultural products and, most importantly, the importance of maintaining international standards and guidelines in the formulation of SPS regulations.⁸⁸ The EAC SPS Protocol is primarily similar to the provisions of the WTO SPS agreement and serves in many areas such as risk mitigation, transparency, coordination and harmonisation of laws to bring to life the provisions of the SPS Agreement. This is in the exception of some of the principles such as non-discrimination, equivalence and risk assessment that have not been adequately addressed in the EAC SPS Protocol.⁸⁹ The Protocol is, however, substantially in conformity with the provisions of the WTO SPS Agreement and that it serves to guarantee of better food safety measures; mitigation of risks from pests and diseases and improved competitiveness of produce of the EAC in relation to external markets.⁹⁰ The EAC has been known to have focused its efforts to harmonise SPS measures and common interests through various working groups.⁹¹

The WTO SPS Agreement, amongst other things, enunciates the principles of nondiscrimination, transparency, harmonisation of laws and regulations, international standards and special and differential treatment to developing countries.⁹² It is to be noted that all of the members of the EAC, except South Sudan, are also members of the WTO and therefore are bound to the provisions of the WTO SPS Agreement. It is recognised, however, that even though the WTO SPS Agreement was an attempt to have a harmonized multilateral system of SPS measures, it noted in its preamble that these measures are often applied on the basis of bilateral agreements or protocols. The only given caveat is that when members apply measures to protect their animal plant health or food safety, that these should not constitute arbitrary or unjustifiable discrimination or disguised restriction on international trade.⁹³

Article 2 of the EAC SPS Protocol to begin with, describes its objectives as promoting trade of food and agricultural products within the community through the implementation on principles of harmonisation, transparency, risk assessment, and strengthening the coordination of SPS measures and activities at a national and regional level within the community.⁹⁴ In this, it is stated that partner states shall cooperate in the harmonisation of laws and regulations. This part is in line with Article 3 of the WTO SPS Agreement⁹⁵ which provides for harmonisation. Here, the SPS Agreement requires that the members base their SPS recommendations on international standards and guidelines as widely as possible. It should be noted that the provisions of the EAC SPS Protocol do not expressly

87 USAID (2016).

88 East African Community Sanitary and Phytosanitary Measures Protocol (2013) Preamble.

89 Prévost (2010).

90 East Africa Trade and Investment Hub (2016) link 7.

91 Magalhães (2010).

92 WTO Sanitary and Phytosanitary Agreement (1995) Preamble.

93 WTO SPS Agreement (1995) Preamble; Article 1.

94 East African Community Sanitary and Phytosanitary Measures Protocol (2013) Article 2.

95 WTO SPS Agreement (1995) Article 3.

In document ÉVA JAKAB (Pldal 39-53)